This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Leslie Allen Talbott,




Filed June 1, 2004


Huspeni, Judge*



St. Louis County District Court

File No. K6-02-600877


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Alan Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802  (for respondent)


John M. Stuart, State Public Defender, Suzanne Senecal-Hill, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Kalitowski, Presiding Judge, Wright, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            In challenging his convictions of and sentence for first-degree test refusal and first-degree DWI, appellant argues that (1) the state’s reliance on a prior license revocation to enhance his DWI charge violates due process because the revocation was not subject to meaningful review, and (2) the 75-month presumptive sentence is unreasonable and inappropriate and does not treat the underlying problem of alcoholism.  We affirm.


            On August 4, 2002, several persons called officials to report that a driver in a dark-colored Buick was weaving all over the road and was involved in several near misses with other vehicles.  One of the callers was an off-duty officer who reported that the driver appeared to be slumped over behind the wheel.  Acting on these reports, Officer Karnes from the Floodwood Police Department located the suspect’s Buick, observed it travel at approximately 40 mph in a 55-mph zone, drive over the fog line twice, make a sudden swerve to the left side of the road, and cross the centerline.

            Officer Karnes stopped the vehicle, and as he approached it, he saw a case of beer and empty beer bottles on the front and back seats.  He asked the driver, later identified as appellant Leslie Allen Talbott, for his license and insurance, but appellant produced neither.  Officer Karnes smelled an odor of alcohol coming from appellant, and he appeared to have vomit on the front of his shirt.  When appellant tried to speak, Officer Karnes could not understand him.  When asked to leave his vehicle, appellant was unable to do so without Officer Karnes’s assistance.  When appellant was unable to maintain his balance, Officer Karnes helped him to walk to the squad car.

            Because of appellant’s condition, no sobriety tests were performed at the scene.  He was taken into custody.  At the police department, appellant was read the implied consent advisory and indicated that he understood it.  When asked to take a breath test, he refused. 

            Appellant was charged with first-degree driving while impaired (DWI) test refusal, first-degree DWI, gross misdemeanor driving after cancellation, and misdemeanor careless driving.  The three prior incidents considered by the state to enhance appellant’s charge to first-degree DWI included a July 22, 2002 DWI conviction from Wisconsin; a May 22, 2002 gross misdemeanor test refusal conviction; and a December 16, 2001 driver’s license revocation. 

            Appellant waived his right to a jury trial, and the case was submitted to the district court on a stipulated record.[1]  At trial, the parties stipulated to dismissal of a December 8, 2001 gross misdemeanor DWI charge and a June 10, 2002 DWI charge.  The state also dismissed appellant’s charges of gross misdemeanor driving after cancellation and misdemeanor careless driving arising out of the August 4, 2002 incident.  At the conclusion of trial, appellant’s motion to dismiss the complaint or enter a judgment of acquittal was denied, and he was convicted of first-degree test refusal and first-degree DWI.

            At the sentencing hearing, appellant requested both durational and dispositional departures from the 75-month presumptive executed sentence.  According to the Sentencing Worksheet, appellant had eight criminal history points.  His criminal record included 43 convictions since 1979, 22 of which occurred within the past ten years.  Appellant’s departure requests were denied, and he was committed to the custody of the Commissioner of Corrections for the 75-month presumptive term.  This appeal followed.



            The constitutionality of a statute is a question of law.  Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).  “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.”  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  A party challenging the constitutionality of a statute bears the burden of demonstrating that the statute is unconstitutional.  State v. Clausen, 493 N.W.2d 113, 115 (Minn. 1992).

            Appellant argues that the use of a prior license revocation as an aggravating factor violated his due-process rights because the revocation was not subject to “meaningful judicial review.”  In support of his argument, appellant cites United States v. Mendoza-Lopez, which states that:

[W]here a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.  This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively the element of a criminal offense.


481 U.S. 828, 837-38, 107 S. Ct. 2148, 2155 (1987) (citations omitted).  Appellant contends that the enhancement statute prevents “meaningful review” because the enhancement of the criminal DWI penalty is based on a civil procedure that does not require proof beyond a reasonable doubt.    

            Appellant’s argument was recently rejected in State v. Coleman, 661 N.W.2d 296 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  He asks, however, that this court review the decision “in light of the facts of the present case.”  In Coleman, the defendant was convicted of first-degree DWI; on appeal he argued that use of a 1999 revocation of his driving privileges as an aggravating factor violated his due-process rights because the 1999 revocation was not subject to “meaningful judicial review.”  Id. at 300.  This court stated that revocation of driving privileges under Minnesota’s implied-consent statute is subject to both administrative review pursuant to Minn. Stat. § 169A.53, subd. 1 (2002), and judicial review pursuant to Minn. Stat. § 169A.53, subd. 2 (2002), and therefore the two proceedings are separate and unrelated.  Id. at 301.  The court held that although the defendant failed to exercise his right to seek judicial review for his 1999 revocation, the availability of judicial review satisfied the Mendoza-Lopez requirement that “an alternative means of obtaining review must be made available.”  See id. (holding that the defendant’s due-process rights were not violated because he had the opportunity for meaningful review) (quoting Mendoza-Lopez, 481 U.S. at 838, 107 S. Ct. at 2155).   

            Here, appellant has failed to demonstrate how his case is distinguishable from Coleman.  Like Coleman, judicial review for the revocation was available to appellant, but he declined to exercise that right.  The fact that meaningful review was available to appellant satisfies the Mendoza-Lopez requirement that meaningful review be available.  See Coleman, 661 N.W.2d at 301.  Minnesota courts have consistently held that using a prior license revocation as an aggravating factor is not unconstitutional.  See, e.g., State v. McLellan, 655 N.W.2d 669, 671 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003); State v. Dumas, 587 N.W.2d 299, 304-05 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).  Because appellant points to no change in statutory law or constitutional interpretation and to no unanticipated result in the application of Coleman, we conclude that the state’s reliance on appellant’s prior license revocation to enhance his DWI charge was not a violation of due process.


            Appellant also contends that the district court erred by denying his motion for a dispositional departure and then sentencing him in accordance with the presumptive sentence as determined by the sentencing guidelines.  The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  Guideline sentences are presumed to be appropriate for every case.  Minn. Sent. Guidelines II.D.  Therefore, only in a “rare” case will a reviewing court reverse a district court’s imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Only where substantial and compelling mitigating factors are present may the district court depart downward from the presumptive sentence.  Id.

            Under Minn. Stat. § 169A.24, subd. 1(1) (2002), a DWI offense constitutes first-degree DWI if the violation is committed “within ten years of the first of three or more qualified prior impaired driving incidents . . . .”  A qualified prior impaired driving incident is defined as a prior impaired driving conviction or a prior impaired driving-related loss of license.  Minn. Stat. § 169.03, subd. 22 (2002).  The sentencing guidelines rank a first-degree DWI at a severity level VII.  Minn. Sent. Guidelines IV.  With appellant’s criminal history, the presumptive sentence for appellant’s offense was a 75-month executed sentence.

            A district court may depart dispositionally from the sentencing guidelines “if the defendant is particularly amenable to probation.”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).  In considering a dispositional departure, the court focuses “more on the defendant as an individual and on whether the presumptive sentence would be best for [the defendant] and for society.”  State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983).  The court may consider as factors relevant to a dispositional departure the defendant’s age, prior record, remorse, cooperation, attitude, and support of family and friends.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  But even if the defendant is particularly amenable to treatment in a probationary setting, the sentencing court is not required to depart from the guidelines.  State v. Evenson, 554 N.W.2d. 409, 412 (Minn. App. 1996), review denied (Minn. Oct. 29, 1998).

            Here, appellant does not assert any substantial and compelling mitigating circumstances that would justify a departure from the presumptive sentence.  Instead, appellant contends that because he has a drinking problem, treatment would be more appropriate than the 75-month presumptive sentence.  We disagree.

            There is little doubt that appellant has a problem with alcohol.  Nevertheless, he also has a long criminal history.  At the sentencing hearing, 43 past convictions were noted; nine for felonies and nine for controlled substance or DWI offenses.  The district court stated that it might be inclined to consider appellant’s request for probation if appellant had demonstrated any ability to remain on probation or to remain sober.  But the court noted that, to the contrary, appellant had received probation for a December 18, 1990 controlled substance violation; a November 9, 1990 aggravated DWI; an April 20, 1992 felony burglary conviction; and a February 2, 1998 check forgery conviction, and in each case, appellant had violated that probation and incurred an executed sentence.  Understandably, the district court chose to impose the presumptive sentence for the convictions now being appealed.  There are no substantial and compelling mitigating circumstances present that would justify a departure from the presumptive sentence, and there is no evidence in the record showing that appellant would be amenable to probation.  The district court did not abuse its discretion by imposing the presumptive sentence.       


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] At the time of trial, appellant’s December 2001 license revocation charges were still pending.